[Above: Not a deliberate shout-out, I’m sure, but we’ll take what we can get, of course.]

Thanks for your patience during our mild vacation! In return, we offer you Wait, What? Ep. 75, which features more than two and twenty minutes of Graeme McMillan and me “stealing the air” or “pump[ing] up the volume” or whatever it is you “kids” call it. [Thanks to Joolian for pointing out that should really read “two hours and twenty minutes,” damn my eyes!]

Do we talk Robert Kirkman, Tony Moore, and The Walking Dead? Do we, ever! Dare we discuss Gary Friedrich, Ghost Rider and Marvel? Dare, we do! Tire I of answering rhetorical questions? Frankly, yes, but I won’t let that get in the way of telling you we also chat about L.J. Smith and The Vampire Diaries; John Rozum, Scott McDaniel, and Static Shock; and James Doohan and William Shatner and Star Trek.

Also, there’s Brian Bendis’ ideas for the New 52; sales expectations for the Marvel and DC; Marvel’s possible reboot and their strategies for Avengers Vs. X-Men; the myth of the Marvel Architects; Joss Whedon and Buffy The Vampire Slayer; and et cetera, and what have you, and like that.

If you were the type to indulge in auditorial gambols, you may have encountered our gift in the wild autumnal splendor that is iTunes (where nearly-extinct creatures like Ping and DRM still play). But if not, please take it as it is offered here, with utmost generosity and verbal pomposity:

34 Responses to “
Wait, What? Ep. 75: Joshua Judges OMAC ”

I’m just passed 10 minutes in and you’re talking about how it’s sad that best friends Tony Moore and Robert Kirkman are in a legal battle. I have this image of Robert Kirkman in the future, in his mansion with his 10 seasons of The Walking Dead blurays on the bookshelf behind him, repeatedly hitting refresh on his Facebook page.

I just looked at the complaint in the Moore-Kirkman lawsuit and Kirkman’s legalistic response. As an attorney I’ve seen these types of cases before and the complaint is fairly typical. (I once represented a doctor who sued her former partner for net proceeds from the continued treatment of shared patients arising out of the sale of their medical practice by the former to the latter. While net proceeds were paid, the other doctor failed and refused to provide an accounting.) Failing to provide an accounting raises all types of red flags, especially when we all know how “creative” accountants can be.

Kirkman’s response was very telling and doesn’t really address the heart of the complaint, i.e., fraud (which, by the way, is often very difficult to prove). Kirkman states that “Tony regularly receives payment for the work he did as penciler, inker and for gray tones on the first six issues of The Walking Dead comic series and he receives royalties for the TV show, to assert otherwise is simply incorrect.”

Tony Moore never asserted that he wasn’t getting paid, just that he is under the belief that he isn’t getting paid the correct amount and has no way to verify that since Kirkman has not provided an accounting, which he is contractually obligated to do. That to me is suspicious. What does Kirkman have to hide? Why not just release the accounting records? Where there is smoke, there is usually fire.

What is probably most troubling for Moore, is the contractual provision that exempts Kirkman’s 3rd party services income from net proceeds and thus from royalties. Moore is no doubt suspicious that Kirkman is receiving more funds through himself and through his LLC as income as opposed to net profit. This could deprive Moore of some rather significant royalties.

I trust Kirkman as far as I could throw him, which given his girth and heft, wouldn’t be far.

Sorry guys, but I’m commenting as I’m listening to the podcast, thus necessitating a separate post.

What you both, and most lay people probably don’t understand about the Friedrich case, was that there was no money judgment which would allow Marvel to immediately collect money from Friedrich (or kick him out of his home, etc.). I think that was supposed to be the whole point of Buckley’s and Quesada’s interview, though they didn’t seem to be successful in getting that point across.

As I understand it, the amount of damages on Marvel’s counter-suit against Friedrich was established by mutual consent of the parties to be $17,000. By agreeing to this amount, a costly trial could be avoided, which otherwise would have required Marvel to prove the amount of damages they suffered and required Friedrich to defend. This agreement allows Friedrich to appeal right away. This benefits Friedrich as it eliminates the cost of a lengthy trial and avoids the delay of the appeal. It benefits Marvel because they ultimately don’t have to prove damages. Any collection on the part of Marvel to collect the $17,000 would be stayed pending the outcome of the appeal. The appeal process could conceivably take years to resolve. Seems like a smart move on the part of both parties.

In the end, even if there is a judgment against Friedrich, there is no requirement that Marvel actually seeks to collect that judgment. Given Friedrich’s finances, Marvel probably won’t see a penny and bankruptcy is always an option. In any event, Marvel could give a shit about squeezing $17,000 out of a destitute artist. The value to Marvel in all of this is to ward off any other artists who might attempt to make similar claims in the future. It’s all about Marvel keeping “the help” on the plantation in line.

I started my career doing failure to pay royalty lawsuits (I sued one rapper three times). It’s a bummer gig– Walt Disney won a case years ago that decided there’s no fiduciary duty, if I collect money for you per contract, to correctly pay you the money I collect on your behalf. I’m not a big fan of the thinking there– a state Senator tried to create a duty for the music business in the last ten years because the failure to pay royalty abuses were so rampant, and his bill got lobbied to this watery gruel. If you look at what happened to Sam Cooke or … well, lots of people.

Anyways, no fiduciary duty means no punitive damages. So when you sue for royalties, you not only believe you’ve been screwed but you’ve been screwed so much that it justifies the lawyer’s (a) hourly or (b) contingency fee. It should usually be (b) but I kinda-worked for this famous music-lady (it was complicated) who got soured lawyers after one of them did a failure to pay royalty for her on an hourly basis– I thought she got taken, personally, but I don’t know who was thinking what when there, so.

But yeah: failure to pay royalty lawsuits are incredibly common in the business. Plus, an attitude I’ve seen more than once is “Money? They were lucky to have gotten to work with me.” People will say that.

Marvel’s current problems, I think, are driven by event fatigue, relaunch fatigue and the absolute cookie cutter sameness of nearly everything in the entire line for the past 6 or 7 years. The days of everyone trying to sound like one writer (Stan’s style back in the day, Bendis’ now) should be long behind us.

Things (stories, events and hell, even creators) have been stretched to their breaking point. Make one or two good Avengers book, not three or four. And make them DIFFERENT. One or two X-Men titles, not how ever many there are currently. Give them a reason to have two seperate titles. Additionally, the Ultimate line splits the brand and does them no favors at this point.

I’m not sure that Marvel’s architects move the needle either. They’re talented, no question. But solidifying these writers positions at Marvel with a brand is a bit disingenuous when you consider how much of Marvel’s output is dictated by editorial fiat. If you think about it, its actually quite a disservice to the writers to label them Architects as it denotes a level of autonomy/responsibility that I don’t think they have. I’m sure the job security is great, and the ability (in some cases) to have Marvel’s publishing/advertising muscle behind Icon projects is nice. But the pressure to consistently deliver on the big-name titles, and helm a linewide crossover once or twice a year can be a bit daunting. Are the job security & attendant benefits worth the blame for poor sales? Are they worth all the surreal PR/explanatory interviews? Are they worth eating up their “prime writing years” with servicing corporate trademarks? Dunno, but I’d be interested in reading an uncensored, no holds barred post-exclusive, post-Architect interview. Well, give it another 6 months or so and the Architect branding will go the way of their “Young Guns”.

Since I haven’t listened to the podcast yet, I feel a little less shame for jumping off the train of profound commentary that is rolling along here, but I laughed when I saw that your first paragraph says the podcast is more than “two and twenty minutes.” I don’t mean I laughed at you for the missing word. No, I laughed because my brain went right to “. . . four and twenty blackbirds baked in a pie,” which then led me to imagine Jeff and Graeme treating us all to a rousing round of “Six a Song of Sixpence.” Maybe in episode 76?

It seems the subject of just dropping all Marvel books has been bubbling under the surface of this podcast for a while now.

I guess if you’re going to do it this would be the year, not only because of AvX but also because of all the good looking stuff Image has coming up. You wouldnt even need to stop reading Waid and Brubaker because they have books coming out from other publishers.

Thanks for the insight into a really tough area for “the rest of us” to get totally.

Still, I believe in contracts because I believe in rule of law. How hard would it have been to mandate a quarterly accounting in the settlement? Or even an annual? That, if I’m reading it correctly, they left it open to an accounting whenever you feel like giving me one…that’s some poor lawyering, yo.

I tweeted, half jokingly, to Chris Samnee, Paolo Rivera, David Aja –

@ChrisSamnee so pleased to see you will be joining DD. You, @davaja, @PaoloMRivera, and others should do your own thing and just hire writer

The response from Samnee was a simple thank you and Rivera sent back

@J_Smitty_ Ha! That’ll be the day.

I see this happening again and really believe it to be a possibility so I responded with –

@PaoloMRivera Oddly enough there was a day like that in 1992. en.wikipedia.org/wiki/Image_Comics

With the current climate and the new definitions of success, how easy should it / would it be to get a “New Image” together? I imagine the internet vanity press would go nuts for it – I think the retailers would love it because it would be an easy hand sell and easy to highlight. A nice small line of books. What does everybody think?

I’m still a bit suprised that the Ultimate universe was so fragile that Loeb was able to kill it with 4 bad issues. Yes admitedly they may have been 4 of the worst comics ever written but it seems that lines have survived that before.

Any ideas as to why it appartently was never able to grow a self sustaining fanbase beyond the Millar/Bendis books?

@J_Smitty_ One of the biggest problems I see with that approach is that the Direct Market (with some notable exceptions) has been optimized to sell superhero comics made by superhero publishers to superhero readers. As a result, a lot of LCS patrons are part of the superhero-reading demographic – 18-35 year-old males.

Creating a “New Image” would probably be a great idea, but if their titles weren’t aimed at that demographic, how many stores would actually carry them? This is not just an idle question – genre diversification is a big deal right now in the SPX creative pool (to take one example) and one of the knock-on effects is different reader demographics.

A creator selling books directly to readers at a convention has a completely different customer base than a publisher selling books to stores, who will then turn around and sell books to readers – their customers. It’s an important consideration.

I’ve got about 40 minutes left in the podcast and just listened to you two discussing the Ultimate line and the Marvel reboot you’ve been theorizing is coming along and I found it interesting that Bendis’s Ultimate Spider-Man trades, according to Jeff, don’t sell like they used to. Leaving us with Ultimates as the one evergreen from the Ultimate line.

And, with no statistics to back this up, I have to say I’m not that surprised, really. Ultimate Spider-Man is up to how many volumes now? It’s too large a beast for someone to wade into and it doesn’t seem to have any “significant storylines” that stand out against all the rest.

People want complete stories (or complete runs) But, at some point, the prospect of investing so much time and money into what is, ostensibly, one, single, continuous narrative is daunting. With Ultimates – there are two volumes that count. That’s easy for a consumer to buy into.

What are the other evergreens? Watchmen, V for Vendetta, Sandman, Dark Knight, Batman Year One, Scott Pilgrim (possibly), Batman: Hush, Bone, Walking Dead (which will be the exception to my “rule”), Daredevil: Born Again (is it? I don’t know).

These are all complete stories (some of which were so significant within a lengthy run of a character that they’ve achieved a status where people don’t even realize they weren’t separate from the original series anymore). These are easy to hand-sell and easy to merchandise in a bookstore (or comic shop) setting. Because they are complete unto themselves.

Of course, I am basing this mainly on my own, personal prejudices and would love to hear others’ thoughts on this, even if they’re going to shoot me down.

I get very touchy about creator rights as an aspiring writer, it is really disheartening to think that even if I do succeed I will be entering an environment that is hostile towards what I’m entitled to.
I love comics and in a different world I would be aiming to write comics, but you have to be a masochist to want to work in that industry. Perhaps that is what the new Superman villain is all about!
Saddening to hear about the Vampire Diaries situation as well, I thought the novel industry was a lot better than that.

Ultimately if we want good comic books and a thriving industry, the powers that be need to facilitate an environment where creativity is encouraged and rewarded. Will that ever happen? Maybe digital comics will give people a chance to bypass the twin demons of DC and Marvel and produce comics that are more financially viable than independent floppies. Is it that shocking that artists migrated towards video game developers, if work for hire is all that is available then why not go somewhere where you get more money and respect?

Jeff, you should go ahead and stop buying Marvel products, I did after Steve Bissette’s response to the Jack Kirby court case and frankly I haven’t looked back. You have the library is you are really jonesing for a book. If you want to properly boycott Marvel by the way, you should just stop mentioning them in your podcasts, I feel that will be far more effective. They don’t deserve the attention so don’t give it to them.

Far less serious things:
– Marvel crack me up with books like Avengers vs X-men: Versus. I mean seriously, I had to check that is an actual thing, that close to parody it is.

– The “architects” title bestowed to their writers is another beauty, why not draw attention to the fact that these writers create nothing new and are living off the back of Lee, Kirby, Ditko and co.

– Jeff, you turned me onto Bakuman and I am immensely grateful to you for that recommendation.

I too believe in the rule of law and in binding contracts. Contracts codify in writing the intentions, rights, obligations and remedies of the parties. The terms of a contract should normally control in the event of a dispute. Courts typically don’t like setting contracts aside and a contract can only be rescinded under special circumstances, such as fraud in the inducement, which is what was alleged by Tony Moore. Fraud is awful difficult to prove.

I think you might be mixing the two cases up a bit (Moore v. Kirkman) and (Friedrich v. Marvel). There was a settlement of sorts in the Friedrich case, which is on appeal. There was no accounting in that case. The accounting for royalties involved the Moore lawsuit. The contract in that case did in fact provide for a specific time frame in which an accounting and a request for an accounting could occur. You can check out the Moore lawsuit and contract at this link if you’re interested: http://www-deadline-com.vimg.net/wp-content/uploads/2012/02/bc478730-1__120210030341.pdf

I haven’t read Hickman’s Fantastic Four, but what you describe as a problem of the run, that Kurt Busiek doesn’t find it enjoyable, is probably the best endorsement you can give the run in my book. I find Busiek’s mainstream Marvel stuff fanwanky and recycled to the point of being unreadable, so if he dislikes Hickman I’m guessing Hickman must be good for all the opposite reasons.

T, I’m not the biggest Buseik fan, but Hickman’s FF run is just utterly bloodless. His approach appears to be to introduce various alien races/species without really defining them beyond their superficial traits (“These people are like Inhumans… but they all look like fish! And these are more Inhumans… but they all look like horses!”) and to clutter the book up with characters who likewise have little time to actually do anything besides sit around tables and rehash the plot of the last few dozen issues (he had Doctor Doom join the FF, head up a group of mad scientists, and then spent at least half a year having them sit around a conference table looking at powerpoint presentations).

Check out the Hickman FF trades, sure – I’d recommend doing so in a way that doesn’t commit you to actually paying for them – but honestly, it is some weak, weak shit he’s selling.

Over at The A.V. Glub, someone wrote about how the Soprano’s ruined television by emphasizing the installment plan of writing where individual episodes are useless on their own and only serve the overall season or even the whole series. Of course, the folks who love those low-rated cable series that follow that approach to storytelling jumped all over him for being an idiot. But, if there’s any place in entertainment where the criticism is valid, it’s certainly comics in general and Marvel in particular.

T – If you’re instinct thus far has been to avoid FF, continue to do so. It may tease you at first with some very meta speeches about new ideas, but it quickly settles into tired gimmicks and fan-wank territory. Plus, Hickman can’t seem to manage more than two characters at a time.

It’s not so much that a studio wouldn’t make a TV deal with a jointly owned property (Eastman and Laird had no problem with the Turtles) as they require airtight clarity that no-one else has any rights. Kirkman was the only listed copyright and trademark holder on the original issues, so when he’s trying to sign a deal they’re going to ask who this “Tony Moore” guy is and documentation that he won’t be a problem (Steve Bissette said once that he was still sometimes asked, years after the fact, to sign waivers that he had no claim on the rights to material published in TABOO, even though he made sure to spell that out clearly in the actual books and contracts). If Moore’s complaint is taken at face value, it’s pretty clear Kirkman was acting as sole owner when trying to make the deal (Moore states he didn’t even know until well after the fact that the deal being negotiated as the time was with NBC), so it sounds like he needed some documentation clarifying Moore’s lack of ownership his exact equity in the work. Doesn’t really sound like Moore has much of a case there, based on what’s been made public (there seems to be a page missing from the complaint posted publicly, which happens to have most of the charge of “breach of implied covenant of good faith and fair dealing”, which might actually spell out how Moore feels Kirkman lied to him).

The non-payment angle he seems to have a much better shot with (at least the reporting of payments), just because it is conspicuous that Kirkman’s rep says Moore is getting royalties but not that he’s getting all documentation he’s requesting. One interesting aspect, the primary venue for Moore’s work is the first paperback, which is (wisely) kept at an entry-level $10 instead of the $15 of the later books. So the “net proceeds” from that could be shown to be minimal, as it’s the loss-leader. Which is fine for Kirkman, since what it leads to is better sales of the later books that he makes good money on, but not so good for Moore who only gets money (among the paperbacks) for that first book. All the loss, none of the leads.

You’re making a lot of assumptions because very little has been made public. A complaint doesn’t state every fact in the universe– it doesn’t have to be that persuasive; it just has to state enough facts to state the claim, to get the ball rolling. I wouldn’t suggest trying to evaluate anything based on a Complaint– sometimes you leave out the most helpful facts for your case on purpose, for various strategy reasons…

“which happens to have most of the charge of “breach of implied covenant of good faith and fair dealing”, which might actually spell out how Moore feels Kirkman lied to him”

Nah, the implied covenant is just a contractual promise implied into every contract in existence that the parties to the contract will proceed in good faith and deal with one another fairly. The factual pleading requirements there are way more vague than fraud, which has to be plead with more specificity than other claims, at least here in California.

A complaint doesn’t have to “spell out” things– that’s what discovery is for (also, why discovery is so expensive, time-consuming, soul-draining, tedious, endless, for the rest of my life, for the rest of my life, for the rest of my life… what have i done…). The court of LA County is different from the court of public opinion– though one time i saw a lawyer at Stanley Mosk who’d shaved his head and the entire back of his head was this massive tattoo… i have to assume he practiced a way cooler kind of law than i do… (i’m assuming he was a lawyer since he was in a suit and there at 8:30 but …) The court of public opinion has fewer skull tattoos, probably.

You mentioned that you didn’t think that any Marvel books had character creator credits. I don’t think most of them do, but the most recent issue of Captain America includes “Captain America Created by Joe Simon and Jack Kirby” on the credits page. Perhaps the credit is there because that issue also has two pages of Joe Simon tributes.

I don’t have any faith in a Marvel reboot because I feel that Marvel and DC have a fundamental difference when it comes to continuity.

DC takes a character and will continue stacking blocks onto of them until that fragile single stack of blocks begins to weaken and tumble, enforcing the need of a roll back.

Marvel continuity is like an avalanche and the character is running ahead of it and it does continue to build up. As long as they can keep the forward momentum going they will not be engulfed into the avalanche and smothered by it.

So to me if you hit the reboot button you may end up slaughtering that illusion of forward momentum Marvel comics continually have.

Captain America has had the Simon&Kirby creator credit for a while now, ever since Marvel and Simon settled their conflicting copyright claims. I think Cap and Gerber’s Howard the Duck are still the only Marvel characters to consistently have a “created by” credit, both following settled legal actions. Every now and then some other characters will, but it never lasts (the most amusing ones were probably in the early DC/Marvel crossovers, where I guess someone thought the absence of acknowledged creators would be conspicuous next to the DC characters who did have such credits. Later management didn’t seem to mind that so much).

Mike Bunge: You’re on the right track, but it’s also high time we called out a certain comics creator who popularized that idea, most repellently as The Only Way To Do Things Otherwise You’re Not Cool And Worse YOU’RE KILLING COMICS and has never been made to answer for it properly.

Another question for your next round: What do the two of you think about tasteful experimental reappropriation of foil and lenticular/holographic covers for single issues and other such materials? Moreover, what are your thoughts on the future of single issues and whether, like books, their survival will likely on the degree to which they are embraced as cultural objects and made to enjoy more elaborate and artful production design to justify their existence and increasing costs of manufacturing, distribution, and consumer expense?

Some super educational stuff here from our Legal Eagles! Takes me back to the days of watching Petrocelli. Comics – they teach ya stuff!

@Dan Coyle: I don’t know who you have in mind but I know who I have in mind (and I guess we all have someone different in mind). I was all set to crack out the dogs and hunt and kill him but then I had a thought…that stuff sold (and sells (but not as well)) and maybe that meant the blame wasn’t his? Maybe it would be wrong to expect someone whose work sells not to produce more of that work in that vein if it is feeding their family, paying the rent and getting them “in the room” with movie people so they can spray them with their “juice”?

Don’t get me wrong, I think that contentless content is a big factor in why sales are so piss poor, I just think that the audience has to take the blame as well. If they are going to accord more importance to “working hard”, “enthusiasm”, taint jokes and some creepy fake connection the creator works harder on than the actual comics (what burgers do YOU eat? It’s IMPORTANT!) can that really be the fault of the guy in question? The hypothetical guy. What’s good for a career is going to trump what’s good for comics every time, I think, in the mainstream anyway.

The comics audience (the North American Super Hero comics audience) is an insecure beast on the whole. If someone flatters them by telling them that these comics are better because they are like TV and the movies (TV and movies being unspokenly agreed to be superior and more legitimate (but not in my house)) then they will respond well to that. Also likes: sugar lumps and scratching behind the ear.

Mind you it isn’t just the audience though; it’s crtics/reviewers as well. The fact that so many intelligent and perceptive minds have taken such empty drivel so seriously for so long is dismaying.

I don’t know, can you really criticise a writer for building a career by cannily exploiting the weaknesses in his own audience? Probably. But at the same time that audience is culpable in falling for it and the Learned Ones also for helping sell it to them. Sure, everybody had a nice time and all but it’s all fun and games until sales are in the shitter.

Sure, it’s irritating that people have made out like bandits while wrecking the place but…that’s happening a lot, even in that real world people tell me about. There’s a lot of blame to go round so maybe we should just skip that and start fixing stuff, starting with content. Get that content sorted, writers. Encourage that good content, critical folks. Buy that good content, er, me.

Comics readers, comics critics, comics writers and me – I think I’ve pretty much alienated everyone there. Another great day! No wonder people throw rotten fruit at me in the street.

Also, I was appalled to hear Mr. Jeff Lester’s comments about the size of Reece Witherspoon’s head. You, sir, are no gentleman. Although being a bit of a pin head myself I may just be touchy about that stuff. Still, to speak of a lady’s failings so blantantly displays a distinct lack of breeding, sir!

I thought your idea of the purpose of the Season One books was spot on. Until I heard that the Fantastic Four one that just came out directly links into Hickman’s current stuff with a To Be Continued at the end of it.